After our last episode a listener reached out to me and said, hey, I liked your episode on Christian Nationalism and church/state issues, but could you talk about things a bit more current?
So, I decided to continue the conversation about religion and the state with a look at one of the most recent cases to come out of the Supreme Court. It made a lot of headlines because it was one of two major church/state cases of the last year. Both cases ultimately eroded the separation between church and state, but as somebody who grew up with prayers at high school football games, this one struck a chord with me.
Joseph Kennedy was a high school assistant football coach who would take a knee on the field after each game in prayer. After some time, some players started joining him. The school district eventually contacted him and told him this behavior was in violation of district policy and he would need to cease this activity. Kennedy willfully violated the district’s policy, was placed on administrative leave, and upon his next review, his contract was not renewed.
The question in Kennedy v. Bremerton School District was, Is a public school employee’s prayer during school sports activities protected speech, and if so, can the public school employer prohibit it to avoid violating the Establishment Clause?
The Court answered, The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.
According to Oyez.org, In forbidding Kennedy’s prayers, the District sought to restrict his actions because of their religious character, thereby burdening his right to free exercise. As to his free speech claim, the timing and circumstances of Kennedy’s prayers—during the postgame period when coaches were free to attend briefly to personal matters and students were engaged in other activities—confirm that Kennedy did not offer his prayers while acting within the scope of his duties as a coach. The District cannot show that its prohibition of Kennedy’s prayer serves a compelling purpose and is narrowly tailored to achieving that purpose.
The Court’s Lemon test, and the related endorsement test, are “abandoned,” replaced by a consideration of “historical practices and understandings.” Applying that test, there is no conflict between the constitutional commands of the First Amendment in this case.
But I argue that this case presents an interesting example of how the Free Exercise Clause, which states that people have the right to exercise their religion freely and as they see fit, and the Equal Protection Clause, which requires that the state govern impartially, can be in tension with one another. On the one hand, Kennedy argued that he has the right to exercise his religion freely, which is constitutionally the case. On the other hand, the Equal Protection Clause guarantees that the government will not favor one religion over another. This can cause tension around Free Exercise – if a person feels they are called to pray at state events they might see it as a necessary part of practicing their religion, but the state cannot be seen to endorse that religion with state prayer. State sponsored religion would be favoring one group and creating outsiders, which would be in violation of the Equal Protection Clause. So while there may be tension between the Equal Protection Clause and the Free Exercise Clause, it is hopefully held in check by the Establishment Clause.
An Equal Protection argument grounds that decision in the importance of a person – that is, it focuses on people as opposed to religion. Such an argument grounds the decision on the protection of people, not institutions. The Bill of Rights is meant to be a document that articulates the rights of people, not institutions. An argument that protects the rights of people as opposed to institutions is more closely aligned with our Constitution (Citizens United notwithstanding). The Bill of Rights, and other amendments, are written to describe how people’s rights are protected. The Bill of Rights is designed to protect Christians (or Muslims, or Buddhists), not Christianity. The same goes for those who do not identify with any religion. An Equal Protection argument in church/state cases continues in that tradition, protecting the rights of people, instead of protecting the ideals and goals of institutions. An Equal Protection argument avoids creating “others” out of nonadherents to the majority religion, as Justice O’Connor noted in Lynch v. Donnelly.
The Equal Protection Clause comes from the Fourteenth Amendment which states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the Equal Protection of the laws.” The Fourteenth Amendment was adopted during Reconstruction to address the rights of newly freed slaves, but the Equal Protection Clause has historically been important beyond just Reconstruction. The phrase means that the government must apply the law equally and cannot create legal castes amongst its citizens.
The Fourteenth Amendment was originally written to incorporate freed slaves into the citizenry. The Equal Protection Clause is at the heart of Brown v. Board of Education, the case which desegregated American schools. It is also at the center of Lawrence v. Texas, which was a turning point in gay rights in American history for ruling that anti-sodomy laws were unconstitutional. The Equal Protection Clause, as we understand it, now guarantees that the government will not create castes or “others” among its citizenry. The state should not favor one group over another – it should treat all of its citizens equally.
This is important in the Kennedy case because by giving tacit approval to one religion over others, Kennedy was creating “others” out of nonadherants to the majority religion, which runs afoul of the Equal Protection Clause. It is not the job of the government to favor one group over another, and state sanctioned religious displays do exactly that.
Susan Gellman and Susan Looper-Friedman have argued that the Equal Protection Clause should be used as well as, or perhaps instead of, the Establishment Clause in church/state separation cases. Equal Protection arguments are grounded in less controversial arguments because an Equal Protection argument does not depend on whether the Court takes a liberal or conservative view of the Establishment Clause. It removes that partisanship from the equation. They claim that the Equal Protection Clause clarifies the tension between religious liberty and the Establishment Clause by focusing on people as opposed to the religion. There has been a great deal of handwringing over government religious expression; it has rarely been couched as an Equal Protection Clause issue, however. William Marshall observes that there has been a variety of reasons since the Engel v. Vitale and Abington School District v. Schempp cases, for example, that prayer in school has been deemed unconstitutional. In Engel v. Vitale the New York State Board of Regents authorized a voluntary prayer for recitation at the beginning of each school day. A group of organizations came together and challenged the prayer on the grounds of the Establishment Clause. The Court decided that prayer in public schools (if the school is leading the prayer) is unconstitutional, even if participation is not required and the prayer is not tied to a particular religion. In Abington v. Schempp, Pennsylvania schools were required by law to read from the Bible at the opening of each school day. The district court ruled that this was a violation of the First Amendment, even after the district allowed a student to excuse himself. The state’s Supreme Court reversed the district court’s decision and held that the practice was constitutional, even though they admitted the religious character of the exercise. However, the Supreme Court of the United States (SCOTUS) ruled that public schools cannot sponsor Bible readings and recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause. Lee v. Weisman is of doctrinal importance because of its inclusion of coercion in applying the Establishment Clause, which we discussed last week. If the government is in any way making citizens feel pressured to pray then the government has crossed a constitutional boundary. But prayer that does not harass or pressure citizens is simply a matter of freedom of expression.
The problem with religious expression from the government, however, is not coercion. The problem is one of “difference.” If a person has to pray along with saying the Pledge at a school event, non-Christian students may be made to feel they are different. Being a “real American” means submitting to the prayer. If you were Jewish or Muslim you were still an American with equal rights, but you were “sort of a variation on the theme – in fact, your very entitlement to those equal rights was because of, and dependent upon, your similarity to Christian Americans, not your equality to them regardless of similarity or difference.” The problem was not that you were coerced into prayer. You may not have felt forced at all. The problem is that you were differentiated by the prayer. Gellman and Looper-Friedman liken this to the problems faced by women and people of color who “report feeling like variations on the white male norm, and whose equality under the law depended on them proving their similarity to white men.” Similarly, Christians in the US have never had to argue they were “real” Americans. So, when the government engages in Christian speech it is reinforcing that connection between Christianity and citizenship. It is creating a separation among Americans of other religions.
Even government religious speech designed to be universal or nonsectarian cannot be entirely inclusive. For one, it automatically excludes atheists and agnostics. Secondly, it likely excludes non-Christians even with attempts to make it as universal as possible. Prayers in religions other than Christianity may be in a different language or may be chanted. They may require a particular posture or may require that the sexes be separated. Prayer that is simply a group of people standing with their heads bowed and listening to one person speaking is inherently not inclusive. In short, the problem is not one of inclusion or coercion but one of equality. Religious expression from the government marginalizes and differentiates its citizens.
It is important to understand Kennedy’s prayer as a part of his community. According to the Circuit Court, Bremerton School District is religiously diverse. Students there represent Christianity, Judaism, Islam, Baha’i, Buddhism, Hinduism, Zoroastrianism, and other faiths. His prayer set him apart from any number of people in his community. According to Kennedy, his religious beliefs “require him to give thanks through prayers at the end of each game for the players accomplishments and the opportunity to be a part of their lives through football.” Kennedy felt called to take a knee at the 50 yard line after the game was over and players and coaches from opposing teams have shaken hands and offer a quiet prayer of thanksgiving for the players safety and sportsmanship. Kennedy was very specific that this be on the 50 yard line after the game. In other words, it had to be a public prayer. This prayer usually lasted about 30 seconds. He wore a shirt or jacket with the school logo when he prayed. Eventually this practice evolved into a much more involved affair. He began giving “short motivational speeches at midfield after the games.” During said speeches students and coaches for both his team and the opposing side would kneel around Kennedy, who raised a helmet from each team, and delivered a message with religious content. Kennedy acknowledged “that these motivational speeches likely constituted prayers.”
The District first learned of Kennedy’s penchant for leading prayers in 2015. This prompted an inquiry into whether Kennedy was complying with the school board’s policy on “Religious-Related Activities and Practices.” The policy stated that “’as a matter of individual liberty, a student may of his/her own volition engage in private, non-disruptive prayer at any time not in conflict with learning activities.’” Additionally, ‘”school staff shall neither encourage nor discourage a student from engaging in non-disruptive oral or silent prayer or any other form of devotional activity.’” Kennedy was advised that he could continue to give inspirational talks, but they must be completely secular. Further, student religious activity and expression must be student initiated and may not be encouraged or supervised by the staff. He was further advised that if students did choose to engage in any religious activity, school staff could not take any action that a reasonable observer could perceive as an endorsement of that activity. Finally, the District told Kennedy that he was
free to engage in religious activity, including prayers, so long as it does not interfere with job responsibilities. Such activity must be physically separate from any student activity and students may not be allowed to join such activity. In order to avoid the perception of endorsement discussed above, such activity should either be non-demonstrative (i.e., not outwardly discernible as religious activity) if students are also engaged in religious conduct, or it should occur while students are not engaging in such conduct.
Kennedy complied with the District for several weeks before requesting a religious accommodation under the Civil Rights Act of 1964. Kennedy claimed that his religious expression occurred during “non-instructional hours” at a time when his coaching duties had ceased. He admitted the prayers were audible, but argued they were not in the name of a specific religion, and that he did not encourage or discourage students from participating. He announced he would be resuming his practice of praying at the next game.
Kennedy’s intention to pray at the game was widely publicized, including by Kennedy himself. At the next game, Kennedy proceeded to take a knee after the game. According to Kennedy’s telling of the incident, “while he was kneeling with his eyes closed, ‘coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside [him].’” Sometime after this spectacle, “members of a Satanist religion contacted the District and said they ‘intended to conduct ceremonies on the field after football games if others were allowed to.’”
The District contacted Kennedy shortly after to clarify its position. It explained that it does not prohibit prayer or other religious exercise or expression by employees while on the job, but such exercise could not lead to a perception of District endorsement of religion. The District argued that as an assistant coach, he was responsible for students not just during games but also prior to and after games until players are released to their parents. He was also wearing BHS attire at an event in front of a large group of attendees who knew he were there solely by virtue of his employment. The District was clear that it was willing to accommodate religious exercise that would not be seen as an endorsement. The District suggested a private location for the prayer, or that Kennedy wait until the stadium was empty before he kneel on the 50-yard line. Kennedy found these suggested accommodations unacceptable and demanded to be able to pray publicly, on the field, at the end of the game. He continued to do so in spite of the District’s admonitions. He was eventually put on paid administrative leave.
While Kennedy was on leave and not able to participate in games, BHS players did not pray on their own after the games. The only time anyone ever prayed was when they were led by Kennedy. This led the District to posit that it “’is very likely that over the years, players have joined in these activities because to do otherwise would mean potentially alienating themselves from their team, and possibly their coaches.’” The District opined that there may have been, however unintentional, a certain amount of coercion for players to join Kennedy in prayer on the field. At his next review Kennedy was not rehired because he failed to follow District policy. He filed suit the following year, claiming that BSD retaliated against him for exercising his right to free speech.
The Kennedy case shines a light on the shifting attitudes of the legal establishment on church/state issues in the current era. The Court of today is much more sympathetic to those who would blend religious display and religion with public life, whereas past Courts were more inclined to keep a stricter separation between church and state.
This is incredibly important in a public arena increasingly defined by Christian Nationalism. Forces that wish to conflate Christianity and American identity are becoming more open, and thereby more powerful every week. It’s hard to say how many Americans really believe that “American” and “government” and “Christian” should all be rolled into one thing, because there is such a loud vocal minority who believe so. But the fact that there is a Court that is paving the way for religion to become normalized by the state gives a lot of power to that vocal minority.
That’s why something like an Equal Protection consideration may be worth considering. So we focus on protecting the person. Not the faith.
Our next episode of Kairoticast will drop on Tuesday, August 23rd. That’s because this week is The Big Rhetorical Podcast Carnival of 2022! The theme of The Big Rhetorical Podcast Carnival is “Rhetoric: Spaces and Place in and Beyond the Academy.” The Big Rhetorical Podcast Carnival 2022 takes place August 22-25. The Big Rhetorical Podcast Carnival 2022 hashtags are: #tbrpodcastcarnival2022 and #placesspacesinbeyond. The Big Rhetorical Podcast will feature a keynote interview for the podcast carnival. This episode will be released August 25. The keynote speaker for The Big Rhetorical Podcast Carnival 2022 is Dr. Madison Jones, Assistant Professor of Writing and Rhetoric/Natural Resources Science and Founder of the DWELL Lab at the University of Rhode Island.
If you enjoy Kairoticast, we encourage you to check out the other podcasts in the Carnival. Explore what my fellow podcasters are talking about! You’ll be able to find the episodes at thebigrhetoricalpodcast.weebly.com.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.